Mark Schantz, Iowa City, for appellant.
Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., Joel E. Swanson, County Atty., for appellee.
Considered en banc.
This is a postconviction proceeding instituted December 13, 1972, under chapter 663A, The Code, in which the petitioner, Michael Timm Rinehart, challenges his conviction of second degree murder based on his tendered plea of guilty to the crime of murder which the Calhoun district court
accepted August 12, 1963. Following a degree-of-guilt hearing the same day, the trial court found Rinehart guilty of murder in the second degree and sentenced him to the state penitentiary for the rest of his natural life. Rinehart was represented by counsel at both the plea and sentencing stages.
In the postconviction application as amended June 25, 1973, petitioner asked the Calhoun district court to order a hearing to determine whether Rinehart's plea of guilty was voluntarily and understandingly made; declare invalid his plea of guilty; and allow a trial on the merits. As grounds for this relief petitioner asserted his sentence and conviction were illegal and in violation of amendment 14 to the federal constitution since they were based upon a plea of guilty that was not voluntarily and understandingly made; petitioner's conviction and sentence were illegal and in violation of amendments 6 and 14 to the federal constitution because petitioner was denied the effective assistance of counsel; and such sentence was illegal and petitioner was denied the protections afforded by amendment 14 in that the sentence challenged was predicated upon an improper basis. Petitioner further alleged the issue in these proceedings was either not raised or was inadequately raised in proceedings previously initiated by him to secure relief from his plea of guilty and sentence.
The State in resistance denied the issues raised in the application for relief in these proceedings were not adequately raised in petitioner's appeal from an adverse ruling on a motion in arrest of judgment, State v. Rinehart, 255 Iowa 1132, 125 N.W.2d 242.
After an evidentiary hearing the Calhoun district court denied Rinehart relief asked but amended the original sentence of life imprisonment and ordered Rinehart to be imprisoned in the penitentiary for a term of 55 years.
Rinehart appeals from that portion of the trial court's decree refusing to set aside the guilty plea and order a new trial. The State challenges that portion of the decree amending the sentence in its cross-appeal.
I. By way of background, Rinehart was charged with the murder of Maxine Henningson whose body was discovered April 9, 1963, on a gravel road outside of Manson, Iowa. Death was caused by stabbing.
April 10 petitioner was arrested and charged with the crime of murder. At the request of defense counsel, Charles O'Connor, Rinehart was sent to the Mental Health Institute at Cherokee on the order of then Judge David Harris of the Calhoun district court (now Justice David Harris of this court). A report from Cherokee dated April 25 concluded petitioner was neither physically nor psychiatrically ill and stated the murder was caused by Rinehart's striking out in a 'blind, unpremeditated fashion' based upon his belief decedent was sexually attacking him. It was reasoned the fifteen-year-old boy, never having experienced any heterosexual contact, acted under 'extreme emotional stress' and 'defended himself in the only way that was available to him at the moment.'
May 3, Judge Harris ordered Rinehart transferred to the State Psychopathic Hospital in Iowa City. The report from that institution dated July 5 differed from the Cherokee study and concluded there was no indication petitioner lacked the mental capacity to plead his own defense or to know what he did was wrong. It was stated, however, Rinehart had a personality defect which involved 'anti-social acts, lack of remorse for such acts, poor ability to accept blame, absence of a sense of social responsibility and incapacity for genuine and lasting relationships with people.'
The Iowa City report further stated nothing indicated Rinehart experienced 'overpowering fear or anxiety' preceding the murder and concluded prognosis for recovery from the personality defects was poor. It was recommended Rinehart be sentenced to the Eldora Training School for Boys.
Jack R. Gray of Rockwell City had been appointed co-counsel for the defense. Although
the order of his appointment was not filed until July 29 the record discloses Gray had actually been involved in the defense of the murder charge since July 12.
August 12 Judge R. K. Brannon approved a county attorney's information charging petitioner with the crime of murder. As indicated, Rinehart was arraigned and sentenced the same day.
Some time after receipt of the July 5 report but before the August 12 court proceedings Judge Brannon, on his own initiative, had ex parte conversations with a psychiatrist in Iowa City who had made a psychiatric examination of Rinehart pursuant to the order of Judge Harris. In the course of these conversations Judge Brannon was given to understand Rinehart had stated to the psychiatrists that he had forced the alleged murder victim to commit oral sodomy. Apparently this statement was first obtained from Rinehart while he was under the influence of sodium amytal. Later he was asked and told the version of the incident related to Judge Brannon. The information did not appear in the evaluation of Rinehart submitted by University Hospital psychiatrists to the court. The psychiatrists were not called as witnesses.
August 16, 1963, attorneys Johnson and Flattery of Fort Dodge as co-counsel with O'Connor and Gray filed a motion in arrest of judgment on behalf of petitioner alleging in substance: (1) Rinehart had a legal defense to the charge filed against him, hence no judgment and sentence could be pronounced; (2) the judgment and sentence were in violation of section 789.2, The Code, since time therein could not be waived by Rinehart, a 15-year-old; and (3) Rinehart's tendered plea of guilty was in violation of his constitutional rights since it was not voluntary, having been induced by a misrepresentation as to his legal rights concerning the charge and the penalties flowing therefrom.
September 5 petitioner was permitted to amend his motion alleging that after the court struck the words 'with malice aforethought' from the face of the county attorney's information there was nothing to support the sentence or jurisdiction of the court. It was further alleged Rinehart had been denied his right of allocution.
The relief sought by Rinehart in the motion in arrest of judgment was the setting aside of his plea of guilty which was relied upon to support the judgment and sentence imposed. One of the legal bases urged by Rinehart as a sufficient ground for granting the relief sought was his contention his plea was involuntary since neither he nor his parents had been advised as to the maximum penalty which could be imposed under a plea of guilty and a finding of murder in the second degree.
Petitioner's motion was denied by Judge Brannon and he appealed to this court being represented by Johnson and Flattery (now Judge Flattery). The case was affirmed, State v. Rinehart, 255 Iowa 1132, 125 N.W.2d 242.
Rinehart as appellant in the cited case urged four errors relied on for reversal. In the first he asserted that at the time of sentence there was no valid charge of murder against him. In this connection he contended when the words 'with malice aforethought' were stricken from the information there was no charge of murder remaining. Rinehart also insisted he had a defense to the charge and should be allowed to withdraw his plea of guilty for the purpose of proving it. The third assignment of error was based on the contention defendant and his parents were not advised of the sentence that might be imposed under a plea of guilty and a finding of murder in the second degree. The final assignment of error was predicated on a claimed failure to accord defendant the right of allocution. It was also urged under this assignment Rinehart, a 15-year-old boy, could not waive the provisions of section 789.2, The Code, which say the sentence must be pronounced on a fixed date, which shall 'be at least three days after the verdict is rendered.'
Each of these assignments was fully briefed and asserted in written argument by counsel for Rinehart in that appeal. This court considered these four assignments individually and in a unanimous opinion of the eight judges participating in the matter determined each adversely to defendant's contentions. Thus, the relief sought, that is the setting aside of Rinehart's plea of guilty on the ground his plea was involuntary by reason of his trial counsel's failure to advise him and his parents of the penalty that might be imposed, was determined adversely to petitioner. See State v. Rinehart, 255 Iowa at 1138-1139, 125 N.W.2d at 246.
The evidentiary hearing in the postconviction proceedings mentioned earlier was held June 28, 1973, before Judge James C. Smith. Petitioner was represented at this hearing as well as in all other postconviction proceedings at the district court level by his present counsel on this appeal. The testimony of several witnesses was taken. The submission to the court included depositions of Judge Brannon and Charles O'Connor, transcripts of the degree-of-guilt hearing, sentencing hearing and the hearings on the motion in arrest of judgment.
The trial court in its decree expressed the view the issues presented by petitioner's application dovetailed into two separate categories, the first involved the question whether petitioner's plea was voluntarily and understandingly made, and the other concerned the sentence and its basis. The court was of the opinion competency of original trial counsel bears on the former, if not in fact decisive. In this connection the court found petitioner did not receive the benefit of effective trial counsel before tendering a plea of guilty which the sentencing court accepted August 12, 1963.
We point out it is this guilty plea which the State must rely on as providing the basis for conviction and support for the judgment and sentence imposed.
The trial court's decree has this statement: 'In view of this denial of effective counsel and of all other circumstances involved, and applying the totality of circumstances theory, the court must and does find and conclude that applicant's plea of guilty was not voluntarily and understandingly made and entered.'
In regard to the basis for sentencing issue the court found: (1) the sentencing court undertook, on its own motion, to travel to Iowa City to discuss applicant's tests and drug-induced statements and the conclusion of his examiners there; (2) trial counsel were not advised of the 'excursion' and had no knowledge of the additional information gained; (3) discovery of the sentencing court's conversations with the Iowa City doctors was only recently made and was unknown to counsel representing petitioner in his prior appeal to this court (State v. Rinehart, 255 Iowa 1132, 125 N.W.2d 242); and (4) the maximum penalty as imposed in the present matter was based, at least in part, on the information thus obtained by the trial court.
The court further found this combination of secretly obtained information and the court's failure to advise petitioner's counsel prior to accepting the plea of guilty was improper and denied petitioner due process.
We set out in full the trial court's conclusions:
'The issue pertaining to the validity of the guilty plea, i.e., whether or not it was voluntarily and understandingly made, which includes the sub-issues of ineffective counsel, inadequate inquiry by the trial court, applicant's youth and lack of prior criminal experience at the time, etc., was one that was readily apparent or discoverable immediately after sentencing. It was not raised on appeal in 1963, although it could easily have been. Therefore, it was waived by applicant. If such were not the rule, appeals would be endless as successive counsel minutely examined that which transpired before them. (Horn v. Haugh, Iowa, 209 N.W.2d 119). Such is not so, however, with the issue concerning the court's basis, or probable basis, for sentencing.
'This court, of course, has no method of knowing the actual reasoning or basis for the life sentence. It can only assume from the nature of the information secretly obtained, the swiftness of sentence, the failure to disclose the obtained information, the imposition of the maximum penalty and the absence of any presentence investigation that the said information based the sentence, at least in part. At any rate, the question must be resolved in applicant's favor. He was entitled to be sentenced based on information subject to challenge.
'Applicant, in both his Application and Amendment thereto, seeks the setting aside of the guilty plea and a new trial. Other relief as set forth in Section 663A.7 of the Code is not prayed for. However, it appears to the court that if it finds in favor of the applicant, which it has in this instance in regard to sentencing, 'It shall enter an appropriate order with respect to the conviction or sentence in the former proceedings--.'
'The court concludes that it has the power and authority to enter an appropriate order correcting the sentence under the provisions of Section 663A.7, although the same was not specifically prayed for, in furtherance of justice.
'This court specifically disregards the information secretly obtained by the sentencing court in Iowa City in arriving at its amended sentence.'
The parties have framed what they contend to be the issues presented by petitioner's appeal and the State's cross-appeal in this manner: (1) Was it error for the trial court to raise the issue of waiver Sua sponte? Was the State required to plead waiver as an affirmative defense?; (2) Did the trial court erroneously interpret both the statute and case law in applying a 'once and for all finality' standard of waiver rather than the proper deliberate and inexcusable abuse of process standard?; and (3) Did the trial court abuse its discretion in reducing petitioner's life sentence to a term of years?
Under Iowa law there is but one crime called murder. The so-called degrees of this offense do not constitute distinct crimes, but gradations of the same crime, devised for the purpose of permitting punishment to be varied according to the circumstances of greater or less enormity characterizing the criminal act. State v. Nutter, 248 Iowa 772, 775, 81 N.W.2d 20, 21 and State v. Hodge, 252 Iowa 432, 460, 105 N.W.2d 613, 619.
Section 663A.8, The Code, which is pertinent to the problem presented here provides:
'Grounds must be all-inclusive. All grounds for relief available to an applicant under this chapter must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.'
II. Rinehart had alleged in his motion in arrest of judgment that his tendered plea was not voluntary and was in violation of his constitutional rights. This allegation rested on the ground Rinehart and his parents was misadvised as to the penalty for second degree murder. As stated, the trial court's denial of this motion was affirmed on appeal.
In connection with his allegation that his sentence and conviction were illegal and in violation of amendment 14 to the federal constitution as they were based upon a plea of guilty that was not voluntarily and understandingly tendered, petitioner had alleged in his application for postconviction relief that the following circumstances surrounding his plea which render it involuntary include: (1) the trial court's failure to
adequately determine whether the plea was entered voluntarily and intelligently; (2) Rinehart's youth and lack of prior criminal experience; (3) a failure to understand the plea could carry a life sentence; (4) the mistaken belief an involuntary confession could be used against him at a trial; (5) defense counsels' failure to investigate the facts or properly advise Rinehart; (6) Rinehart's mental condition prior to or during guilty plea proceedings; and (7) Rinehart was not guilty of second degree murder.
In the June 25 amendment to this application Rinehart alleged as an additional basis for relief the contention he had been denied effective assistance of counsel in the proceedings wherein his plea of guilty was tendered. He maintains this allegation constituted an independent ground for relief.
In other words, the relief sought by Rinehart in the motion in arrest of judgment was the setting aside of his plea of guilty which was relied upon the support the judgment and sentence imposed. In the postconviction proceedings the same relief was sought. In the motion in arrest Rinehart asserted his plea was involuntary because neither he nor his parents had been advised as to the maximum penalty which could be imposed under a plea of guilty and a finding of murder in the second degree, whereas in the postconviction proceedings he alleged his plea of guilty was not voluntarily and understandingly tendered due to his asserted denial of effective assistance of counsel which he insists is the assertion of a new and independent ground for relief.
It could be argued the State's denial that the issues presented by petitioner's application for relief as amended were not adequately raised in his appeal from an adverse ruling on his motion in arrest of judgment serves to challenge petitioner's contention he had asserted a new and independent ground for relief by alleging he had been denied effective assistance of counsel.
The question is dealt with in Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148, where the Court in considering successive motions on grounds previously heard and determined in prior applications for federal habeas corpus or ...